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12/19/88 Harold Stanton, v. the City of Chicago

December 19, 1988

HAROLD STANTON, PLAINTIFF-APPELLEE

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

532 N.E.2d 464, 177 Ill. App. 3d 519, 126 Ill. Dec. 779 1988.IL.1833

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

This is an interlocutory appeal filed by defendant, the City of Chicago (the City), appealing the temporary restraining order entered by the circuit court on March 24, 1988, which enjoined the City from mandatorily retiring plaintiff, Harold Stanton, a Chicago police captain, from the police department (the Department) and from removing plaintiff from "injured on duty" status. On appeal, the City contends that: (1) the circuit court abused its discretion in enjoining the City; and (2) the temporary restraining order must be vacated on the grounds that it enjoined the City indefinitely without giving the City the opportunity to demonstrate the legal sufficiency of plaintiff's complaint for two months. For the following reasons, the order of the circuit court is affirmed.

The underlying facts are undisputed. On January 13, 1988, the Chicago city council passed an amendment to section 25 -- 37 of the Municipal Code of Chicago (Chicago Municipal Code § 25 -- 37 (1988)) which reduced the mandatory retirement age for all sworn police officers above the rank of sergeant from 70 years old to 63 years old (the amended retirement ordinance). Accordingly, on February 1, 1988, a memorandum was sent to all Chicago police districts advising the unit commander that all sworn police officers above the rank of sergeant who attained the age of 63 on or before March 27, 1988, would be retired on that date. Of further relevance to this appeal, section 11 -- 45 of the Municipal Code of Chicago (Chicago Municipal Code § 11 -- 45 (1982)) provides that any member of the Department who is injured while performing his police duties to the extent that he is disabled and cannot perform his regular duties will receive his regular salary for a maximum of one year, provided that he remains disabled for that period.

On February 15, 1988, plaintiff, a Chicago police captain, was injured while performing his police duties and placed on "injured on duty" status. On February 25, 1988, plaintiff reached the age of 63. Thus, pursuant to the amended retirement ordinance, he was to be mandatorily retired on March 27, 1988. In an effort to avoid mandatory retirement, plaintiff filed a verified complaint against the City on March 22, 1988, seeking to enjoin the City from enforcing the amended retirement ordinance.

Count I of the complaint set forth plaintiff's employment history with the Department, alleging, inter alia, that he had retired from the Department in 1979 to accept an appointment as director of investigations with the office of the corporation counsel for the City of Chicago. In reliance upon the Department's mandatory retirement age of 70, plaintiff returned to the Department rather than accept private employment upon termination of his appointment. Plaintiff further alleged that unless the City was enjoined from enforcing the amended retirement ordinance, he would suffer irreparable injury for which he had no adequate remedy at law.

Count II of the complaint alleges that the amended retirement ordinance denies plaintiff equal protection of the laws because it discriminates against him and other members of the Department who are employed above the rank of sergeant. Count III requests that the City be enjoined from enforcing the amended mandatory retirement ordinance as long as plaintiff remains on "injured on duty" status. Count IV alleges that the amended retirement ordinance is void on the grounds that it is inconsistent with and directly contravenes section 2-104(7) of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 2-104(7)).

Thereafter, on March 24, 1988, plaintiff filed a "Motion for Temporary Restraining Order," requesting the court to temporarily restrain the City from enforcing the amended retirement ordinance and from mandatorily retiring plaintiff on March 27, 1988. In his motion, plaintiff alleged, inter alia :

"Plaintiff has a meritorious cause of action and there is a likelihood of success on the merits. The status quo of Plaintiff's employment should be maintained until adjudication of the case on its merits because his termination will cause him irreparable harm and his continued employment on disability leave will cause no harm to the City of Chicago."

Later that day, a hearing was held on plaintiff's motion. Both sides were represented by counsel. Following arguments, the trial court granted plaintiff's ...


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